Leaked Plans Shows Top EU Body Backing Copyright Industry Against The Public, The Internet, And Innovation

from the whatever-happened-to-Estonia's-deep-understanding-of-digital? dept

Techdirt has been covering the slow and painful attempts by the EU to make its copyright laws fit for the digital age for nearly four years now. Along the way, there have been some good ideas, and an astonishingly badone that would require many online services to filter all uploads to their sites for potential copyright infringements. Despite the widespread condemnation of what is now Article 13 in the proposed Copyright Directive, an important new leak (pdf) published on the Statewatch site shows that EU politicians are still pushing to make the censorship filters mandatory.

The document is an attempt by Estonia, which currently holds the Presidency of the Council of the EU -- one of the three main European Union bodies -- to come up with a revised text for the new Copyright Directive. In theory, it should be a compromise document that takes into account the differing opinions and views expressed so far. In practice, it is a slap in the face for the EU public, whose concerns it ignores, while pandering to the demands of the EU copyright industry.

Estonia's problem is that the whole idea of forcing Web sites to filter uploads contradicts an existing EU directive, one from 2000 on e-commerce. This created a safe harbor for sites that were "mere conduits" or simply hosting material -- that is, took no active part in publishing material online. The Directive explicitly says:

Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

Most of the leaked document is a forlorn attempt to circumvent this unequivocal ban on upload filters:

In order to ensure that rightholders can exercise their rights, they should be able to prevent the availability of their content on such [online] services, in particular when the services give access to a significant amount of copyright protected content and thereby compete on the online content services' market. It is therefore necessary to provide that information society service providers that store and give access to a significant amount of works or other subject-matter uploaded by their users take appropriate and proportionate measures to ensure the protection of copyright protected content, such as implementing effective technologies.

It is reasonable to expect that this obligation also applies when information society service providers are eligible for the limited liability regime provided for in Article 14 of Directive 2000/31/EC [for hosting], due to their role in giving access to copyright protected content. The obligation of measures should apply to service providers established in the Union but also to service providers established in third countries, which offer their services to users in the Union.

In other words, even though Article 14 of the E-commerce Directive provides a safe harbor for companies hosting content uploaded by users, the EU wants to ignore that and make online services responsible anyway, and to require upload filtering, even though that is forbidden by Article 15. Moreover, this would apply to non-EU companies -- like Google and Facebook -- as well. The desperation of the Estonian Presidency is evident in the fact that it provides not one, but two versions of its proposal, with the second one piling on even more specious reasons why the E-commerce Directive should be ignored, even though it has successfully provided the foundation of Internet business activity in the EU for the last 17 years.

Jettisoning that key protection will make it far less likely that startups will choose the EU for their base. The requirement to filter every single upload for potential infringements will probably be impossible, and certainly prohibitively expensive, while the legal risks of not filtering will be too great. So the Estonian Presidency is essentially proposing the death of online innovation in the EU -- rather ironic for a country that prides itself for being in the digital vanguard.

The leaked document also contains two proposals for Article 11 of the Copyright Directive -- the infamous link tax. One takes all the previous bad ideas for this "ancillary copyright", and makes them even worse. For example, the new monopoly right would apply not just to text publications in any media -- including paper -- but also to photos and videos. In addition, it would make hyperlinks subject to this new publisher's "right". The only exceptions would be those links not involving what is termed a "communication to the public" -- a concept that is so vague that even the EU's top courts can't agree what it means. The other proposal completely jettisons the idea of any kind of link tax, and instead wants to introduce "a presumption for publishers of press publications":

in the absence of proof to the contrary, the publisher of a press publication shall be regarded as the person entitled to conclude licences and to seek application of the measures, procedures and remedies … concerning the digital use of the works and other subject-matter incorporated in such a press publication, provided that the name of the publisher appears on the publication.

This is something that has been suggested by others as providing the best solution to what publishers claim is a problem: the fact that they can't always sue sites for alleged copyright infringement of material they have published, because their standing is not clear. It effectively clarifies that existing copyright law can be used to tackle abusive re-posting of material. As such, it's a reasonable solution, unlike the link tax, which isn't.

The fact that two such diametrically-opposed ideas are offered in a document that is meant to be creating a clear and coherent way forward is an indication of what a mess the whole EU Copyright Directive project remains, even at this late stage. Unfortunately, the Estonian Presidency's unequivocally awful drafts for Article 13 suggest that the EU is still planning to bring in a law that will be bad for the Internet, bad for innovation, and bad for EU citizens.

Reader Comments

This'd rule out massive file hosts, is all.

Yay! -- What's the problem? If hosting so much content that can't survey and police, that's too much, because approaches certainty that most of the content will be copyrighted.

You'd still be able to put up videos of your cat log-rolling a watermelon.

But not the whole of movies with their true names.

In other words, you pirates will cry, but it IS a reasonable solution.

I think it's silly to have the position that this Directive 14 or whatever is chiseled into granite: the experimentation period of teh internets is over, and we now know the amount of copyright infringement that results.

Re: This'd rule out massive file hosts, is all.

I STILL get "Held For Moderation" on first attempt, but "Resend" get its through. What's up with that? I understood yesterday that new policy is on. But I only got one glance at the "Free Speech Edition" notice, now apparently gone, because doesn't appear in all browsers.

Re: This'd rule out massive file hosts, is all.

Yup. No copyright problems out there at all. In "fact", that guy whose original bird song recording was accused of infringement actually did steal the bird song from who ever made that claim -because they recorded it from a different bird of the same species at an earlier date and therefore they now own all recordings of that particular type/species of bird. No problems here at all - right?

Re: This'd rule out massive file hosts, is all.

Actually, it could also rule out record studios, movie studios, even newspapers, from having online content -- remember that everything is copyrighted, even public domain content (the number of owners is just very broad).

The only difference between an authorized upload and an unauthorized one is verbal permission, which is not included anywhere in the uploaded file. If the law is amended to place the burden of proof of legality on the host and the default presumption is a lack of authorization, it would tend to kill ALL online content on the internet pending proof it is properly authorized.

And what constitutes proof? No one knows. Not even the content industries.

Re: This'd rule out massive file hosts, is all.

Re: Re: This'd rule out massive file hosts, is all.

>>> "Filthy TOR pirate says what?"

I'll guess that's a reply to me, since it's a nasty one-liner. -- I say the plain truth as I see it, with as much substance and clarity as I can. You can always gainsay and ad hom far easier, with better clarity, and of course don't have to bother with substance,

Re: Re: This'd rule out massive file hosts, is all.

>>> "Filthy TOR pirate says what?"

I'll guess that's a reply to me, since it's a nasty one-liner. -- I say the plain truth as I see it, with as much substance and clarity as I can. You can always gainsay and ad hom far easier, with better clarity, and of course don't have to bother with substance,

---Two attempts on this one not through though a prior was BRIEFLY in "Moderation", so I'm using a session that worked. Simply noting fact.

Re: This'd rule out massive file hosts, is all.

>If hosting so much content that can't survey and police, that's too much, because approaches certainty that most of the content will be copyrighted.

Due to automatic copyright, everything has a copyrighted, but that does not mean that it is an infringing work.

Such policing means somebody select which works get published, and most would not be accepted, because they would not be examined, and instead languish in the growing pile of awaiting a decision pile. As you do not like your comments be policed, why are you suggesting that all posts to the Internet are policed. Hint comments would have to be policed in case they link to an infringing work.

Re: Re: This'd rule out massive file hosts, is all.

>>> "Due to automatic copyright, everything has a copyrighted, but that does not mean that it is an infringing work."

Well, I wrote "But not the whole of movies with their true names.", meaning "commercial". You're right that I was some imprecise, except it's in context as above "copyright protected content", CLEARLY meaning "infringed" and from major producers, NOT amateur cat videos.

>>> "As you do not like your comments be policed, why are you suggesting that all posts to the Internet are policed."

My comments HAVE BEEN "policed" here as no one else's have. I want YOURS to be "policed" to simply be CIVIL. Is that too much to ask? My comments are always within common law: in that regard, I won't at all have to change. -- Masnick / Techdirt puts out notions and invites comments in a PUBLIC comment box, can't then discriminate against viewpoints without cause in common law. As I've long argued.

As for your assertion it's intolerable and stifling for file hosts to not allow OBVIOUS infringement on site, phooey. There's NO intrinsic right for file hosts to even exist as at present, and since all evidence shows those are simply centers for openly making available infringed works, TOO BAD! Your interest is clear: you won't be so easily able to get infringed content. TOO BAD! Physically duplicated movie DVDs and selling them isn't allowed, either, at least not when known and in countries where copyright is respected. -- Yes, I know you don't support copyright. Circular argument.

Re: Re: Re: This'd rule out massive file hosts, is all.

How's this for an argument then: Regardless if there is an "intrinsic right for file hosts to even exist as at present", everyday the current copyright systems are being abused to take down content unlawfully.

Critics are being silenced. Materials are being taken offline due to DMCA request by people that are not/do not work for the owner of the copyright in question. Given this, can we really say copyright is 'respected'?

On a different note: By your logic of "all evidence shows those are simply centers for openly making available infringed works", modding communities for games like Skyrim would not exist.

Re: This'd rule out massive file hosts, is all.

Who would have thought that someone who openly criticizes and objects and moans that Techdirt is policing their comments is whooping and applauding a proposed system that forces hosting platforms to police their site for copyright infringement. hmmmmmmm.....

Re: Re: This'd rule out massive file hosts, is all.

I believe the word you're looking for at the end there is 'hypocrisy'. As in 'the person is holding a hypocritical position in demanding that others filter their sites, but throwing a fit when they get 'filtered'.'

Re: Re: Re: This'd rule out massive file hosts, is all.

>>> "Who would have thought that someone who openly criticizes and objects and moans that Techdirt is policing their comments is whooping and applauding a proposed system that forces hosting platforms to police their site for copyright infringement."

No, I was (I hope WAS), being BLOCKED for my VIEWS, while I complained that YOU pirates were NOT being policed, but free to spew vile ad hom. Those are not inconsistent at all. Period.

I gather from the bitter attitude of fanboys at the site being fair, yet my MAIN comment sits there not censored, I mean "hidden", that there really was a change at least stated, somewhere... On the "Insider Chat"?

So WHAT happened? I'd ASK for a link to that new policy stated flat out, which I YET AGAIN MISSED, though as usual the regulars seem to know, except doubt I'm getting that much tolerance.

Re: Re: Re: Re: This'd rule out massive file hosts, is all.

No, I was (I hope WAS), being BLOCKED for my VIEWS,

Yeah, among the many issues with this claim is that I find it hard to accept the assertions of (assuming you're the same person, and not just someone who makes extremely similar claims) a confirmed liar with regards to... well, anything, but if you're finding your posts flagged and/or held for moderation I can pretty much guarantee it has little to nothing to do with your views, and more to do with the grossly hypocritical insults and baseless assertions you throw everywhere, something that apparently anyone but you understands.

You are of course free to enjoy your persecution complex and delusions(the 'Insider Chat' one you just mentioned is particularly entertaining given anyone who actually looked can see it on the right side of the screen), and act as though you are somehow owed a response from Mike/TD and are 'vindicated' when they ignore you and/or don't obsessively comb through comments and spot yours, just don't act surprised if no-one takes you seriously.

Re: Re: Re: Re: Re: This'd rule out massive file hosts, is all.

You are OFF-TOPIC and I'm not a "confirmed liar". Masnick sort of asserts so, THE ONE TIME HE RESPONDED out of HUNDREDS OF MY COMPLAINTS -- the existence of which many others have complained about so he couldn't possibly have missed them. The others which haven't been answered stand. Those are my evidence, that's why I made sure to get them in over and over. You're just trying to act as though my complaints since 2015 don't exist.

Of course you're taking Masnick's side: that's why he put it out. And this page shows the site allows you calling me a liar.

Now, in any case, you should take each comment on own merits and not hound persons (especially if not sure) every time appear: that's TROLLING. YOU are a troll. Stop calling me a liar. Get on topic.

QUIT DISRUPTING WITH AD HOM PILE ON ATTACKS, ALL YOU TROLLS. JUST SAY WHAT YOU WANT ON TOPIC.

---

By the way, I can't see the "Insider Chat" since don't allow scripts. On other hand, I do see all of front page and all of comments without clicking.

*As for Masnick calling me a liar about number of attempts: I cannot tell when "Cloudflare" blocks/flags a TOR address -- nor IF it does, that's just what I've read elsewhere, so I guess it's possible he didn't see the prior 9. But Cloudflare may no longer be able to block all TOR addresses, and THAT could be part of why this admission.

There's NO doubt that I've complained hundreds of times right here on either difficulty getting through or never comes out of "Moderation", yet you (or any administrator) have only this once responded officially (that I've seen, I hedge, to be fair), let alone admitted anything prior.

OR Masnick's reason could be that I got curious about rare commenters with accounts, MANY having gaps of several YEARS, and you want me to drop that.

So I see FOUR causes more credible than just suddenly noticed problem and immediately fixed:

1) too many persistent dissenters have home IPA blocked becoming known
2) TOR browsers, and Cloudflare may not be keeping up with new TOR addresses
3) my hundreds of complaints -- and your ignoring -- on the site establishes that there's problems with your system, at best
4) you likely noticed with your administrator view of page visits that I've skimmed a couple hundred user accounts, and you may well know that MANY are ODD -- oh, I know all will say "crazy", but there is the juxtapostion in time of my pointing those up and the response from Masnick; it's just evidence to weigh TOO

I can only guess motives. But for certain, Masnick's long silence says much not good. Any admission at all now suggests a "limited hangout" to prevent worse.

@ Masnick: are you stating that I'm a liar, or is there some other explanation possible? Because clearly your fanboys are going to use your offhand words as basis for attacks. If there's new tolerance on, I'm sure you'll want to clear up misunderstanding.

Ah and how could I miss your conspiracy theory regarding 'dead' accounts(something which multiple people have already addressed so I'm not going to waste my time doing so), 'administrator view'(doesn't exist as far as I know, 'Insider' status, which anyone can get, does not include that as a 'perk', nor would I want it), your admission that you're apparently so obsessed with the site that you've 'skimmed a couple hundred user accounts'(looking for 'anomalies'?), and how people in general and Mike in particular not caring to humor and respond to all of your 'ideas' is somehow evidence of something...

Re: Re: Re: Re: Re: Re: This'd rule out massive file hosts, is all.

You are OFF-TOPIC and I'm not a "confirmed liar".

The comment section can vary widely in what's discussed such that there's really no such thing as 'off-topic', something you would know had you been around as long as you claim to have been. If one person makes a claim/statement there is nothing 'off-topic' about someone else adddressing it.

Those are my evidence, that's why I made sure to get them in over and over. You're just trying to act as though my complaints since 2015 don't exist.

So you admit to spamming the site with complaints 'hundreds of times'/'over and over', and wonder why you get flagged/caught by the spam filter?

It's not that I'm ignoring your previous complaints(now that I've got a good idea as to who you are), it's just that I do not, and never have, bought your explanation for them, that you're being 'silenced' because of your 'views' rather than far more obvious reasons such as hypocritical insults, using a browser that will result in being caught by the spam filter, admitting to spamming the site and so on.

the existence of which many others have complained about so he couldn't possibly have missed them.

'Many others' being two as far as I can tell, and even that's assuming you and and the other I'm thinking of aren't the same person(not using a name makes it slightly difficult to tell). Even so, just because he may or may not have read them does not mean he was under any obligation to respond to them, so the fact that he didn't respond to your hundreds of complaints isn't 'evidence' of squat.

QUIT DISRUPTING WITH AD HOM PILE ON ATTACKS, ALL YOU TROLLS. JUST SAY WHAT YOU WANT ON TOPIC.

So saying that you're a liar(though I'm also open to 'hypocritical spammer' if you really object to 'liar') because you didn't actually make as many posts as you claimed you did is an ad hom, and the sign of a 'troll', but running around calling people 'pirates' and 'fanboys' and 'trolls' is... not?

Re: Re:

In order to ensure that rightholders can exercise their rights, they should be able to prevent the availability of their content on such [online] services, in particular when the services give access to a significant amount of copyright protected content and thereby compete on the online content services' market.

Screw that. They can "exercise their rights" the same place the rest of us have to exercise our rights against entities we believe are violating our rights: in court.

Any copyright takedown without a court order is a violation of the uploader's basic rights. Due process exists for a reason, and it should not get thrown out the window just "because copyright."

Re:

Yes, but you must realize that The Holy Copyright is The Most Important Thing Ever, Without Which Nothing Would Ever Be Created. I mean it is the most important thing in existence, of course it makes sense to do anything and everything to 'protect' it.

And all this started because of the gutless fuckers in the US government who were and still are more concerned with filling their own bank accounts with 'donations' from the entertainment industries than looking after their voters! This attitude has now spread so far and so badly that these industries are basically in control of, not just the internet, but the whole freaking planet! What a fuck up!!

This is a wonderful idea: at long last the world is coming to a proper appreciation of property. But why limit it to computers? If cars had to be built so that stolen property could not be placed in their cargo space, theft would PLUMMET! If law schools were held responsible for all lawsuits lost by their graduates, insane lawyering could be restricted to Avalon-Hill wargamers. If the government were held responsible for every idiotic pronouncement by a bureaucrat ... the national debt would

Re: Re: And by the way, I'm being shown correct about trends.

"Free content does not equal infringing content, and the Internet is chock full of legal free content."

With you so far...

"That is what the *AAs want to destroy because it is competition to their overpriced content."

If it's overpriced, don't buy it. -- I don't, consume almost NONE from ??AAs, even if free. It's mind-numbing CRAP.

But don't take it for "free", that's theft. That's the central contradiction for pirates: they still desperately want the content so badly will flout Constitutional law, and of course twist their arguments until theft is not only "legal" but admirable.

Re: Re: Re: And by the way, I'm being shown correct about trends.

Your the one who brought up piracy,when I was talking about legal free content. However if sites have to police all content, the result will be the loss of much of the legal free content, because policing content is not compatible with the volume free content bing produced today.

Have you tried 'not lying'?

You should try that, it's generally considered more conductive to a discussion than repeatedly lying about the other person, pretending to be a mind reader who knows the true motivation of people, and constructing and beating up strawmen.

WARNER BROTHERS AND SONY ARE INTO SLAVERY

lol ive already got all teh free content i need, in fact i can now make my own without you entertainment smucks

and ill share off the net with friends and make sure they spend there cash on anything but you slaver types ( how you forget how warner brothers got caught in canada bringing in foreign temp workers at less then min wage for 3d special effects and animations....ya your doing nothing for society anymore you should have your rights revoked in total and finality )